Settlement of Camp Lejeune case shows dilemma facing many victims

WASHINGTON — Among the thousands of victims of contaminated drinking water at Marine Corps Base Camp Lejeune was a woman with the ironic name of Mary Freshwater, who was raising her family at the North Carolina base in the 1970s, when toxins in the water were at their peak.

Freshwater had two healthy children before she and her husband moved to Camp Lejeune, but while living in a section of the base called Paradise Point, she lost two infant boys to gruesome birth defects — one with an open spine and one without a cranium. She later gave up on expanding her family after having a miscarriage of twins.

Then, three decades after leaving the base, Freshwater died at age 68 in 2013 after an agonizing battle with two types of acute leukemia, which she was convinced was caused by cancer-causing compounds such as benzene and the potent cleaning solvents TCE and PCE that had leaked into the base groundwater for years.

Last week, Freshwater’s daughter Lori, a writer and health researcher in Rhode Island, received a $400,000 settlement from the Department of Justice as compensation for her mother’s death, an amount she will split with her brother after paying a 20% legal fee.

Lori Freshwater said she struggled with the decision to accept the settlement, when it appears that her lawsuit over her mother’s death, along with nearly 3,800 others like hers pending in federal court in North Carolina, could soon come to a conclusion that would require the government to pay out billions of dollars to Camp Lejeune victims.

“There will never be true justice for our losses,” said Freshwater, now 56. “There can’t be.

“But we can stop allowing the wrongdoing by giving what’s left of our days over to a tragedy,” she added.

Waiting for closure

Closure is still a ways off for most of those harmed by Camp Lejeune’s water — even for Freshwater, who still has lawsuits pending over the deaths of her baby brothers and her own personal harm.

Federal judges in North Carolina have given the Department of Justice and plaintiffs’ attorneys until Oct. 30 to come up with a framework for settling all 3,784 lawsuits and more than 400,000 damage claims filed with the Navy since Congress passed a law in 2022 allowing victims of the tainted water to seek compensation from the government.

The settlement process is likely to be similar to the distribution of funds to victims of the 9/11 terrorist attacks; that figure has reached more than $18 billion, with more payments expected in the years ahead. Attorneys following the Camp Lejeune litigation say the payouts to survivors for illnesses and deaths linked to the contamination could reach or exceed the 9/11 amount.

The process also could be lengthy, said Freshwater’s attorney, Hunter Shkolnik of NSPR Law Services based in San Juan, Puerto Rico. Shkolnik was part of the legal team for plaintiffs in the 9/11 cases.

“I don’t believe the mass settlement is coming anytime soon,” he said, adding that he has recommended that all his Camp Lejeune clients accept settlements now rather than wait for the courts to determine the amounts to be awarded for individual damage claims.

“I just think these are clients that have waited too long,” Shkolnik said. “I don’t see telling your clients not to take this today rather than hoping to get more down the road.”

Congress passed the Camp Lejeune Justice Act as part of the 2022 law known as the PACT Act, providing full health coverage to veterans for illnesses linked to exposure to toxic contaminants during their service.

The law allowed anyone who spent more than 30 days at Camp Lejeune when the water was contaminated, between 1953 and 1987, two years to file damage claims with the Navy. If there was no resolution in six months, victims could file lawsuits in the U.S. District Court for the Eastern District of North Carolina.

In September 2023, the DOJ and the Navy approved a process called the “elective option,” offering settlements based on the amount of time spent at Camp Lejeune and the damage that was done later.

Those who contracted any of five “Tier 1” diseases — kidney cancer, liver cancer, non-Hodgkins lymphoma, leukemia or bladder cancer — are eligible for $150,000 if they spent less than a year at Camp Lejeune between 1953 and 1987; $300,000 if they were at the base between one and five years; and $450,000 if they were there for more than five years.

Those with “Tier 2” diseases — multiple myeloma, Parkinson’s disease, kidney disease or end-stage renal disease, and systemic sclerosis or scleroderma — would be entitled to $100,000, $250,000 or $400,000, again depending on the time spent at Camp Lejeune.

In addition, the government will pay another $100,000 in cases of premature death from the diseases.

Settlements offered

The Justice Department said in a Sept. 14 court filing that 408,500 claims have been filed with the Navy, and the government has offered 3,637 of those victims settlements of between $100,000 and $550,000. The offers totaled $1.08 billion, and payments totaling $872 million have been made to 2,822 claimants, the DOJ said.

That means the number of pending claims is still more than 400,000, and if a mass settlement is reached in the 3,784 lawsuits before the federal court, it would probably establish a matrix for paying out damages based on the length of time spent at Camp Lejeune and the nature of the illnesses or deaths linked to the contamination, Shkolnik said.

“There already is a settlement master appointed,” he said. “I think that master is working with the parties to develop a grid, and I think the grid is going to be very similar to the elective option program with different criteria.”

A change in criteria would be essential for victims such as Mike Partain, a Florida man who was born at Camp Lejeune in 1968 and diagnosed with male breast cancer 39 years later. Partain is not eligible for the elective option because the DOJ guidelines say a diagnosis must come within 35 years of exposure to the water at Camp Lejeune.

“The whole settlement option the Navy created was one-sided,” Partain told CQ Roll Call in April. “There was no input with science, no input with the plaintiff attorneys, they just arbitrarily on their own decided the 35-year requirement … and they decided on the value of the claim.” Partain’s lawsuit is one of those still pending in federal court.

Jerry Ensminger, a 24-year Marine Corps veteran who has been seeking justice for Camp Lejeune victims for 30 years, also has said the elective option would not come close to compensating for his and his family’s suffering.

Ensminger learned in the mid-1990s that the poisoned water likely caused the death of his daughter Janey, who was conceived at the base and died of leukemia in 1985 at the age of 9.

Dozens of Camp Lejeune victims held two days of rallies on Capitol Hill last week, demanding that Congress amend its 2022 law to allow plaintiffs to request jury trials and to spread some of the cases to federal courts outside North Carolina.

But the bills they are seeking remain stalled in both the House and Senate, with no chance of action until both chambers return after the midterm elections, by which time the outline of a mass settlement may have been presented to the court in North Carolina.

“The demand for jury trials and spreading it around to other courts, I don’t think that was ever going to go anywhere, because the DOJ wasn’t going to allow it,” said Freshwater. “I think part of the reason that I wanted to take this elective option is to put it behind me so that I can kind of take a breath and look at it from a little bit of a distance.”